Arizona had asked the full 9th U.S. Circuit Court of Appeals to take another look at the case, which revolved around then-President Barack Obama’s 2012 order creating the Deferred Action for Children Arrivals program.

Arizona had denied driver’s licenses to DACA recipients, saying they
did not have the citizenship documentation the state requires to issue a
license. But a three-judge panel of the 9th Circuit ruled last year
that, in areas of immigration, Arizona has to follow federal law and
that it could not withhold licenses from DACA recipients.

The full court stuck by that ruling last week, but six dissenting
judges wrote that letting the earlier ruling stand creates “a world
where the president really can pre-empt state laws with the stroke of a
pen.” The question is particularly timely now, they said.

“At the crossroads between two presidents, we face a fundamental
question of presidential power,” Judge Alex Kozinski wrote in the
dissent for the six judges who wanted to reconsider the case.

A spokeswoman for Arizona Attorney General Mark Brnovich said Friday
that the office was studying the decision and would discuss next steps
with its client, the Arizona Department of Transportation. Calls to
other state officials, including the governor’s office, were not
returned Friday.

Attorneys for the DACA plaintiffs – including the American Civil
Liberties Union, the Mexican American Legal Defense Educational Fund,
the National Immigration Law Center and others – declined comment or
were not available.

Obama created DACA
by executive order in 2012 after Congress failed to act, after several
years of consideration, on the Development, Relief and Education for
Alien Minors, or DREAM Act.

Under DACA, the Justice Department agreed to defer deportation for
two years at a time for immigrants who met specific criteria: They had
to be under 16 when they were brought to this country, be in school or
the military, and have clean records, among other requirements. The
designation did not change their legal status but, once approved, DACA
recipients could get employment authorization documents that allowed
them to get jobs.

The court’s panel said last year that Congress gave Obama the
authority to set immigration law, and pre-empt state law, when it failed
to move on the DREAM Act. That meant Arizona had to issue licenses to
DACA recipients who were otherwise eligible to drive.

But the dissenting judges said that while the federal government
determines who is allowed to enter the country, it is within the state’s
power to control who gets a driver’s license.

“Denying a driver’s license is not tantamount to denying admission to the country,” Kozinski wrote.

Kozinski also called the theory that Obama had the authority to make
law that pre-empts state law “puzzling” and “slippery.” Only Congress
make such laws, he wrote.

“Presidential power can turn on and off like a spigot; what our
outgoing president has done may be undone by our incoming president
acting on his own,” he wrote.

Kozinski explained that executive power leans toward the party that
is in office, making it “the forbidden fruit of our politics,
irresistible to those who possess it and reviled by those who don’t.”
For that reason, powers left solely in the hands of the executive branch
can get messy as the power switches between parties every few years.

But Judge Marsha Berzon, one of the original panel members, defended its reasoning in a new concurrence to the case.

She said immigration law specifically gives the attorney general the
ability to pre-empt state law, “not any particular exercise of executive
authority.”

“Arizona has, therefore, intruded into an area of decisionmaking entrusted to the federal government,” she wrote.

The decision was still defensible, she said, on grounds of equal
protection. The panel decision said Arizona had granted licenses to
people who produced employment authorization documents while denying
them to DACA recipients who produced the same documentation. She cited a
1915 case on employment and equal protection.

“States assuredly do have authority to regulate employment, just as
they have authority to regulate the distribution of driver’s licenses,”
Berzon wrote. “The state authority lacking … here, is the authority to
justify discrimination as to areas within state power on grounds that
are beyond state authority because (they are) exclusively within the
authority of the federal government.”

She said that there are things Arizona can decide – “Are the
applicants old enough? Can they pass the written test? Can they pass the
driving test? Have they violated driving laws in the past, as by
driving without a license or while drunk?” – but the basic right to a
temporary license under the DACA program is not one of them.

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